UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA … · 2020. 8. 7. · united states district court . middle district of florida . tampa division . united states of america

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA v. Case No. 8:20-mj-1518-T-60-AEP MUHAMMED MOMTAZ AL-AZHARI ______________________________________/ OBJECTION TO MAGISTRATE JUDGE’S PRELIMINARY HEARING DECISION

NOW COMES Defendant, Muhammed Momtaz Al-Azhari, by and

through undersigned counsel, and objects under Fed. R. Crim. P. 59(b)

to the magistrate judge’s decision on Mr. Al-Alzhari’s motion to

reconsider her preliminary hearing decision.

MEMORANDUM OF LAW

BACKGROUND

The Government filed a criminal complaint in this case alleging

that Mr. Al-Azhari attempted to provide material support to a foreign

terrorist organization (FTO), in violation of 18 U.S.C. § 2339B. Mr. Al-

Azhari was arrested, and a magistrate judge held a preliminary hearing

on May 27, 2020. (Doc. 13).

The complaint is accompanied by a 62-page affidavit executed by

Federal Bureau of Investigation (FBI) Special Agent Cynthia Hazel.

Case 8:20-mj-01518-TPB-AEP Document 29 Filed 06/15/20 Page 1 of 21 PageID 209

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The evidence relied upon by the Government at the preliminary

hearing, Agent Hazel’s testimony, was largely redundant with the

affidavit. To summarize this testimony, the Islamic State in Iraq and

al-Sham (ISIS) is a well-known FTO that has committed atrocities and

terrorism. Its propaganda encourages its followers who cannot join in

its military operations overseas to engage in “lone wolf” attacks where

they live.

Mr. Al-Azhari is a United States citizen. According to the

Government’s multi-level hearsay evidence, while living in Saudi

Arabia, Mr. Al-Azhari was convicted of “possessing extremist

propaganda,” “holding extremist views,” and attempting to join an

organization called Jaysh al-Islam. (R. at 33-34) (“R.” citations are to

the transcript of the preliminary hearing). Jaysh al-Islam is a rebel

group fighting in the Syrian civil war against tyrant Bashar Assad’s

government forces. (Doc. 18-1). At least at the time of Mr. Al-Azhari’s

detention in Saudi Arabia, Jaysh al-Islam was supported by the U.S.

State Department and the very country that detained Mr. Al-Azhari,

Saudi Arabia. (Id.). Mr. Al-Azhari explained to the Pretrial Services


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Officer that the Saudis tortured him while he was detained, a fact

confirmed by a relative. (Pretrial Serv. Rep. at 3). Mr. Al-Azhari is 23

years old now; he was a child when he was first imprisoned and

tortured. (See id. at 2).

The FBI began surveilling Mr. Al-Azhari from the moment he

returned to the United States, after he was removed from Saudi Arabia,

in 2018. (R. at 10). The Government’s evidence included no evidence of

anything of note until April 20, 2020. Then, the Government’s evidence

indicated Mr. Al-Azhari attempted to buy a legal gun part on Ebay.

(Doc. 5, p. 1; R. at 10-11). The FBI posed as the seller and, for a time,

discussed with him the sale and barter of firearms. After Mr. Al-Azhari

was arrested for carrying a concealed pistol, he called off the deal. (Doc.

5, p. 21).

The Government offered that Mr. Al-Azhari made internet

purchases it says are consistent with the creation of a silencer, and that

he expressed unorthodox views to co-workers, including statements in

support of the 9/11 attacks and Omar Mateen, who committed a mass

shooting at the Pulse nightclub in Orlando, Florida. The Government


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also offered that Mr. Al-Azhari drove to Honeymoon Island beach and

local FBI headquarters to scout those locations as targets (so it says),

and to the Pulse nightclub. The Government offered that Mr. Al-Azhari

consumed ISIS propaganda and news, and made a video on his phone

playacting a terrorist scene. (R. at 9, 16-18).

Lastly, the Government offered that it introduced Mr. Al-Azhari to

a paid informant, who discussed ISIS and jihad with Mr. Al-Azhari. In

speaking to this informant, on May 22, 2020, the Government offered

that Mr. Al-Azhari said, “I want to be ISIS.” (R. at 41). The

Government also offered that, on May 23, 2020, Mr. Al-Azhari, in

discussing jihadist beliefs with the informant, said, “I am ISIS.”

However, Agent Hazel agreed that Mr. Al-Azhari did not join ISIS

“overnight.” (R. at 41). The Government offered that the paid

informant and Mr. Al-Azhari discussed a broad-ranging array of acts

they could commit with guns, including robbing banks, killing police

officers, and committing an attack similar to Mateen’s. (R. at 63-64).

Agent Hazel testified that the informant offered to facilitate the sale to


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Mr. Al-Azhari of a pistol and silencer, and, when the sale was

consummated, the FBI arrested Mr. Al-Azhari. (R. at 23).

On cross-examination Agent Hazel admitted that Mr. Al-Azhari

never attempted to provide any currency, monetary instruments,

financial securities, lodging, training, expert advice or assistance, safe

houses, false identification documents, communications equipment,

facilities, weapons, lethal substances, explosives, or transportation to

ISIS. (R. at 36-39). Agent Hazel testified that Mr. Al-Azhari attempted

to provide only “personnel,” in the form of himself, to ISIS. (R. at 39).

However, Agent Hazel testified that Mr. Al-Azhari acted

independently of ISIS:

Q. You describe Mr. Al-Azhari as a lone wolf terrorist, correct? A. Yes. . . . . Q. All right. And what you mean by that, at least for example, is he wasn’t sent here by ISIS, correct? A. Correct. Q. And he wasn’t trained by ISIS?


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A. No. Q. He wasn’t under ISIS’s control? A. No. Q. He wasn’t taking direction from ISIS? A. No. Q. He didn’t organize anything for ISIS? A. Well, he – it appears he recruited [the informant] to help him in his attack on behalf of ISIS. Q. Okay. But he didn’t do that at the direction of anyone from ISIS, correct? A. Correct. Q. All right. He didn’t supervise anything for ISIS? A. No. Q. He didn’t direct operations for ISIS? A. No. Q. And certainly you think he – he sympathized with ISIS, correct? A. Yes.


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Q. And you think he wanted to advance those goals, correct? A. Yes. . . . . Q. All right. And as a lone – but as a lone wolf, he -- he acted independently of ISIS, correct? A. Yes. Q. All right. And he was just seeking to achieve their -- their goals on his own? A. Yes.

(R. at 39-41). The magistrate judge found probable cause that Mr. Al-Azhari

committed the offense of attempting to provide material support to an

FTO. (R. at 58-59). However, she permitted the parties to file citations

of authority (without briefing) in support of their positions. (R. at 58-

60). The parties did so, and, in addition, on June 3, 2020, Mr. Al-

Alzhari moved the magistrate judge to reconsider her preliminary-

hearing finding. (Doc. 19). On June 8, 2020, the magistrate judge

issued an order re-affirming her finding of probable cause, and on June

9, 2020, she denied the Defense motion to reconsider. (Doc. 23-24).


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ARGUMENT

The magistrate judge erred in finding probable cause that Mr. Al-

Azhari committed the offense of attempting to provide material support

to an FTO because the Government presented no evidence in any form

that Mr. Al-Azhari attempted to work under the direction or control of

ISIS. Generally, a magistrate judge must hold a preliminary hearing if

a defendant is charged by complaint and has not yet been indicted. See

Fed. R. Crim. P. 5.1(a). If the Government fails to show probable cause

that the defendant committed the crime, the magistrate judge must

dismiss the complaint and discharge the defendant. Fed. R. Crim. P.

5.1(f).

A magistrate judge may be referred any “matter that may dispose

of a charge or defense.” Fed. R. Crim. P. 59(b)(1). Preliminary hearings

under Rule 5.1 have been referred to magistrate judges in this district.

Local R. 6.01(c)(5). A party may object to a magistrate judge’s findings

and recommendations within 14 days of their issuance. Fed. R. Crim.

P. 59(b)(2).1 Accordingly, the district court may review a magistrate

1 The magistrate judge in this case did not issue a report and recommendation. However, a magistrate judge who finds no probable cause at a preliminary hearing is


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judge’s decision at a preliminary hearing. Wright & Miller, Federal

Practice and Procedure: Criminal § 92 (4th ed. 2020); cf. United States

v. Brigham, 569 F.3d 220, 226 (5th Cir. 2009) (affirming the district

court’s review of a magistrate judge’s probable cause determination at a

preliminary hearing under Fed. R. Crim. P. 32.1). The district court

must review the objections de novo. Fed. R. Crim. P. 59(b)(3).

The statute under which Mr. Al-Alzhari is charged provides:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . ., that the organization has engaged or engages in terrorist activity . . ., or that the organization has engaged or engages in terrorism . . . .

18 U.S.C. § 2339B(a)(1). “The term ‘material support or resources’ has

the same meaning given that term in section 2339A (including the

directed to dismiss the complaint and discharge the defendant. Fed. R. Crim. P. 5.1(f). Such a hearing is therefore “dispositive” within the meaning of Rule 59 because it is a “matter which may dispose of a charge . . . .” See Fed. R. Crim. P. 59(b)(1). Whatever form the magistrate judge’s decision takes, review in this Court is de novo. See Fed. R. Crim. P. 59(b)(3).


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definitions of ‘training’ and ‘expert advice or assistance’ in that

section) . . . .” 18 U.S.C. § 2339B(g)(4). Section 2339A, in turn,

provides:

(1) the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; (2) the term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and (3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

18 U.S.C. § 2339A(b) (emphasis added).

Section 2339B continues:

Provision of Personnel. – No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may


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be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.

18 U.S.C. § 2239B(h).2

Mr. Al-Azhari is charged with an attempt under this statute. “To

establish an attempt as a crime, proof is required: (1) that the

defendant intended to commit the underlying criminal offense with the

requisite mens rea, and (2) that the defendant engaged in conduct which

constituted a substantial step toward the commission of that crime and

which strongly corroborates the defendant’s criminal intent.” United

States v. Rothenberg, 610 F.3d 621, 626 (11th Cir. 2010) (citations

omitted).

Applying the Rothenberg formulation to § 2339B, the Government

had to show probable cause that (1) Mr. Al-Azhari intended to provide

2 Subsection (h) does not provide an affirmative defense that must be proved by the defendant; the burden is the Government’s. United States v. Shafi, 252 F. Supp. 3d 787, 792-93 (N.D. Cal. 2017); United States v. Pugh, No. 15-CR-116 (NGG), 2015 WL 9450598, at *11 (E.D.N.Y. 2015).


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himself or someone else to work under ISIS’s direction or control, or to

organize, manage, supervise, or otherwise direct the operations of ISIS,

knowing that ISIS is a designated FTO, engages in terrorist activity, or

engages in terrorism, and (2) Mr. Al-Azhari engaged in conduct that

constituted a substantial step toward providing himself or someone else

to work under ISIS’s direction or control, or to organize, manage,

supervise, or otherwise direct the operation of ISIS, that strongly

corroborated his intent. See 18 U.S.C. §§ 2339B(a)(1), (h), 2339A(b);

Rothenberg, 610 F.3d at 626. Conversely, if there is no probable cause

that Mr. Al-Azhari intended to provide himself or someone else to work

under ISIS’s direction or control, or took any step toward doing so, the

evidence is lacking, even if Mr. Al-Azhari sympathized with ISIS and

attempted to advance the organization’s goals independently, through

attacks or otherwise. See 18 U.S.C. § 2339B(h).

Eleventh Circuit cases considering § 2339B illustrate the point.

See United States v. Suarez, 893 F.3d 1330, 1334-35 (11th Cir. 2018);

United States v. Augustin, 661 F.3d 1105, 1119-22 (11th Cir. 2011). In

Suarez, the defendant coordinated directly with individuals he believed


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to be members of ISIS in order to acquire a bomb, and accepted the

bomb while reiterating his plan to detonate it on a crowded beach.

Suarez, 893 F.3d at 1334-35. On these facts, the court held that the

evidence was sufficient to sustain a conviction for attempting to violate

§ 2339B. Id. Suarez was guilty because he attempted to make himself

“personnel” of ISIS by placing himself under the organization’s direction

and control to conduct an attack, and only failed to do so because the

people with whom he was interacting were not really ISIS members.

Similarly, in Augustin, the defendants were charged with

conspiracy to violate § 2339B. They met with an FBI informant who

was posing as an Al Qaeda operative and liaison to that organization.

The defendants and the informant discussed various attacks they would

commit for the organization, and conducted reconnaissance and

intelligence gathering at planned targets. At the informant’s demand,

the defendants took a prepared oath of allegiance to Al Qaeda in

preparation for the attacks. The court affirmed the convictions, but

noted that the evidence was “far from overwhelming.” Augustin, 661

F.3d at 1119-22.


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Thus, as Suarez and Augustin teach, to be guilty of an inchoate

crime of attempt or conspiracy under § 2339B, the defendant must in

some way endeavor to place himself or someone else under the FTO’s

direction and control. Generally, this will involve some level of

communication between the defendant and an agent or perceived agent

of the FTO, as in Suarez and Augustin, or some thwarted effort to join

the FTO on the battlefield overseas, see, e.g., United States v. Mehanna,

735 F.3d 32, 43-46 (1st Cir. 2013) (affirming conspiracy conviction

where the defendant traveled to Yemen to join an al Qaeda training

camp as a recruit); United States v. Farhane, 634 F.3d 127, 150 (2d Cir.

2011) (affirming conviction where the defendant took an oath to act as a

battlefield doctor for the FTO). Out-of-circuit cases are in accord on this

point.3

Perhaps because of the clarity of subsection (h)’s plain language,

no case has ever sanctioned a prosecution under § 2339B where the

3 See United States v. Wright, 937 F.3d 8, 26-27 (1st Cir. 2019); United States v. Kaizu, 559 F.Appx. 32, 37 (2d Cir. 2014); United States v. Hendricks, 950 F.3d 348, 353 (6th Cir. 2020); United States v. Jones, 383 F.Supp.3d 810, 816 (N.D. Ill. 2019); see also Hosseini v. Nielson, 911 F.3d 366, 376 (6th Cir. 2018).


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defendant allegedly planned an attack in the United States on the basis

of sympathy to an FTO, but without any direction or control from the

FTO.4 The Supreme Court upheld § 2339B against a constitutional

vagueness challenge in part because of subsection (h)’s clarification that

the statute does not capture independent acts done outside of the FTO’s

direction and control. Holder v. Humanitarian Law Project, 561 U.S. 1,

23 (2010). Expanding on this point, the Court explained:

“[S]ervice” similarly refers to concerted activity, not independent advocacy. See Webster’s Third New International Dictionary 2075 (1993) (defining “service” to mean “the performance of work commanded or paid for by another: a servant’s duty: attendance on a superior”; or “an act done for the benefit or at the command of another”). Context confirms that ordinary meaning here. The statute prohibits providing a service “to a foreign terrorist organization.” § 2339B(a)(1) (emphasis added). The use of the word “to” indicates a connection between the service and

4 When pressed for analogous cases by the magistrate judge, the Government mentioned four: United States v. Osmakac, United States v. Saipov, United States v. Al-Arian, and the case of Omar Mateen. (R. at 48-50). Mr. Osmakac was not charged under § 2339B. United States v. Osmakac, 868 F.3d 937, 947-48 (11th Cir. 2017). The Saipov case is still pending trial. United States v. Saipov, No. 1:17-cr-722-VSB (S.D.N.Y. 2017). The defendants in Al-Arian were charged under § 2339B, but the jury was not charged that it could consider “personnel” as a basis for providing material support. United States v. Al-Arian, No. 8:03-cr-77-T-30-TBM (Doc. 1431). Omar Mateen was not prosecuted because he was killed. Mr. Mateen’s wife was prosecuted for her husband’s attack, and was acquitted. United States v. Salman, No. 6:17-cr-18-Orl-40KRS (Doc. 336).


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the foreign group. We think a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.

Id. at 23-24.5 Thus, as subsection (h) makes abundantly clear, the

provision of personnel “to” the FTO does not qualify as material support

when it is undertaken independently and without concerted activity,

and when done outside the direction and control of the FTO.

Consistent with these principles, at least one court has rejected a

Government effort to prosecute a defendant for providing himself as

“personnel” to conduct an attack outside of the organization’s direction

or control, albeit in a different, but closely related, context. See United

5 While the Government disclaimed any allegation that Mr. Al-Azhari attempted to provide a “service” under § 2339B at the hearing, (R. at 47), like “personnel,” “service” does not include independent activities. See Humanitarian Law Project, 561 U.S. at 24 (“Moreover, if independent activity in support of a terrorist group could be characterized as a ‘service,’ the statute’s specific exclusion of independent activity in the definition of ‘personnel’ would not make sense. Congress would not have prohibited under ‘service’ what is specifically exempted from prohibition under ‘personnel.’ The other types of material support listed in the statute, including ‘lodging,’ ‘weapons,’ ‘explosives,’ and ‘transportation,’ § 2339A(b)(1), are not forms of support that could be provided independently of a foreign terrorist organization. We interpret ‘service’ along the same lines. Thus, any independent advocacy in which plaintiffs wish to engage is not prohibited by § 2339B. On the other hand, a person of ordinary intelligence would understand the term ‘service’ to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”).


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States v. Abu-Jihaad, 600 F. Supp. 2d 362 (D. Conn. 2009). In Abu-

Jihaad, the defendant consumed jihadist propaganda from an

organization called Azzam. The defendant even corresponded with the

organization, discussing current events and his thoughts on jihad.

Azzam published a request to send resources to the Taliban, and

exhorted its readers to assist in violent jihad. Then, the defendant sent

Azzam sensitive information about U.S. naval ship movements and

ammunition. However, there was no evidence that Azzam requested

the information from Mr. Abu-Jihaad, or coordinated or directed him to

provide it. 600 F. Supp. 2d at 366-75, 380-82, 401-02.

Mr. Abu-Jihaad was charged under § 2239B’s companion statute,

§ 2239A. That statute, which provides the definition of “material

support” for § 2339B, does not include § 2339B(h)’s express limitation

on the word “personnel.” The court explained that, “as an initial

matter, the Court must decide whether the amended definition of

‘personnel’ in § 2339B applies to § 2339A as well, for even the

Government concedes that if the amended definition in § 2339B applies

to § 2339A, the evidence is wanting.” Id. at 399. Deciding that the


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subsection (h) clarification does not apply to § 2339A, the court adopted

a definition of “personnel” for § 2339A: “one who makes resources in

the form of individuals (including himself) available, or furnishes

individuals (including himself), for the purpose of actively preparing for

or carrying out the crimes prohibited by the statute through some form

of coordinated action is guilty of violating § 2339A.” Id. at 400.

Conversely, “[e]ntirely independent action is not sufficient to qualify as

being at least ‘active in’ an organization as required by the definition of

personnel.” Id.

Applying this formulation to the facts before it, the court ruled

that the Government’s evidence was insufficient. Id. at 402. Noting the

lack of any coordination between Azzam and the defendant, the court

explained:

The Government recognizes this gap in the evidence and seeks to get around it by pointing to a general request by Azzam to its readership in November 2000, in which it sought aid for the Taliban by requesting money, gas masks, or battlefield medical services. Of course, Azzam also exhorted its readers to assist in violent jihad. But to build a quid pro quo or understanding from these generalized requests for assistance is more than the evidence will bear, even taking all


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reasonable inferences in the light most favorable to the Government.

Id. at 401-02.

Here, Agent Hazel’s testimony narrowed the Government’s theory

to that of Mr. Al-Azhari attempting to provide “personnel” to ISIS. (R.

at 36-39). Further, Agent Hazel testified that Mr. Al-Azhari did not

attempt to place himself under ISIS’s direction or control, and did not

attempt to be an organizer, supervisor, or director of operations for

ISIS. (R. at 39-41). There is no evidence, as there was in Suarez and

Augustin, that Mr. Al-Azhari tried to join the FTO or work under its

direction. Thus, even accepting at face value the Government’s

evidence as to the historical facts, a straightforward application of

subsection (h) demonstrates that there is not probable cause to believe

that Mr. Al-Azhari committed the offense charged in the complaint. He

took no substantial step, nor any step at all, to place himself or anyone

else under ISIS’s direction and control, and did not intend to do so.

The Government’s response at the hearing was that ISIS exhorted

its followers to commit “lone wolf” attacks, and that is what Mr. Al-

Azhari attempted to do: he “affiliated himself” with ISIS, “consumed


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[their] directives,” and consumed their “propaganda telling people to

carry out attacks.” (R. at 54-55). But this understanding of § 2339B

would render subsection (h) meaningless. As in Abu-Jihaad, a

listener’s consuming propaganda and exhortation does not place the

listener under the speaker’s “direction or control,” even if the listener is

persuaded to act. And, subsection (h) insulates from liability anyone

who independently advances the FTO’s goals and objectives. Congress

did not simultaneously protect those who independently advance the

FTO’s goals and punish those who act knowing what the FTO’s goals

are. Accordingly, the magistrate judge erred by finding that there is

probable cause to believe that Mr. Al-Azhari committed an attempted

violation of § 2339B. This Court should therefore dismiss the complaint

and discharge Mr. Al-Azhari. See Fed. R. Crim. P. 5.1(f)

WHEREFORE the Defendant, Mr. Al-Azhari, prays this Court

will dismiss the complaint and discharge him.

DATED this 15th day of June 2020.

Respectfully submitted, JAMES T. SKUTHAN ACTING FEDERAL DEFENDER


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/s Samuel E. Landes Samuel E. Landes D.C. Bar No. 1552625 Assistant Federal Defender 400 North Tampa Street Suite 2700 Tampa, Florida 33602 Telephone: (813) 228-2715 Facsimile: (813) 228-2562 Email: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 15th of June 2020, a true and

correct copy of the foregoing was filed with the Clerk of the Court using

the CM/ECF system, which will send a notice of the electronic filing to:

AUSA Patrick Scruggs.

/s Samuel E. Landes Samuel E. Landes Assistant Federal Defender


mailto:[email protected]

mailto:[email protected]

Documents

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA … · 2020. 8. 7. · united states district court . middle district of florida . tampa division . united states of america